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794 F.

2d 1499

14 Soc.Sec.Rep.Ser. 157, Unempl.Ins.Rep. CCH 16,908


William MOON, Plaintiff-Appellant,
v.
Otis R. BOWEN, Secretary of Health & Human Services,
Defendant-Appellee.
No. 85-3438.

United States Court of Appeals,


Eleventh Circuit.
July 25, 1986.

R. Jeremy Solomon, Atty., Tallahassee, Fla., for plaintiff-appellant.


Kenneth W. Sukhia, Asst. U.S. Atty., Ross A. Nabatoff, Tallahassee, Fla.,
for defendant-appellee.
Appeal from the United States District Court for the Northern District of
Florida.
Before HILL, Circuit Judge, TUTTLE and HENDERSON* , Senior Circuit
Judges.
PER CURIAM:

We have withheld a decision in this appeal pending a decision by the Court en


banc in the case of Parker v. Bowen, 788 F.2d 1512.

This is an appeal from a decision of the district court affirming a determination


by the Secretary that Moon was not entitled to benefits under the disability
provisions of the Social Security Act. The finding of disability by the
Administrative Law Judge was reversed by the Appeals Council which took the
appeal on its own motion, as was the case in Parker.

The appeal in Parker involved two matters for resolution by this Court. The
first was the standard of review of the Secretary's determination. The second

related to the requirements if the Appeals Council's rejected credibility findings


by the Administrative Law Judge.
As to the first issue, the court held:
4

Accordingly, we hold that in cases where the Appeals Council reverses an


ALJ's decision on its own motion, judicial review is limited to determining
whether the Appeals Council's decision is supported by substantial evidence.

788 F.2d at 1519. As to the second issue, the court held:

6 We therefore hold that the Appeals Council has the power to reject an ALJ's
...
credibility findings, but in determining whether there is substantial evidence to
support the decision of the Appeals Council, a federal court will consider the record
as a whole, including, inter alia, the ALJ's credibility findings and the reasons those
findings were rejected by the Appeals Council. In order to permit meaningful
review, we also hold that the Appeals Council should ordinarily reject the ALJ's
credibility findings expressly and state the reasons for its conclusions.
788 F.2d at 1521 (emphasis added.)
7

In the case before us, Moon made a showing of psychological and neurotic
conditions sufficient for the ALJ and the Appeals Council to find that he could
not continue in his present work, a task which involved stressful conditions, and
an ability to conduct interpersonal relationships. The ALJ found these
conditions to be so serious as to entitle him to a disability finding. Upon review
by the Appeals Council, the Council made the following findings:

1. The claimant met the special earnings requirements of the Act on May 31,
1979, the date that the claimant stated he became unable to work, and continues
to meet them through at least September 30, 1983.

2. The claimant has the following impairments: a passive dependent personality


disorder and neurotic depression.

10

3. The claimant's allegations of pain and nervousness are not credible to the
extent that such problems would preclude simple routine work activities at all
exertional levels.

11

4. The claimant has the residual functional capacity to perform work-related

functions except for work involving excessive stress or complex tasks.


12

5. The claimant is unable to perform his past relevant work as a mobile home
service man.

13

6. The claimant does not have a significant exertional impairment.

14

7. The claimant's nonexertional limitations do not significantly affect his


exertional ability; therefore, considering that ability within the framework of
the rules in Appendix 2, Subpart P of Regulations No. 4, the claimant is not
disabled.

15

In its discussion, the Council also concluded as follows:

16

The Appeals Council has also taken into account the claimant's allegations with
respect to pain and nervousness. The Social Security Act and its implementing
regulations take note of the importance of such complaints in the evaluation of
disability and require that an individual's own description of symptoms and
limitations be considered, together with the pertinent signs and laboratory
findings shown in the record. Sections 404.1528, 404.1529, 416.928 and
416.929 of the regulations specifically provide that an individual's statements
alone are not enough to establish that there is a physical or mental impairment
and that a finding of "disability" will not be based on symptoms, including pain,
unless medical signs or findings show that there is a medical condition that
could be reasonably expected to produce those symptoms. In the instant case,
the evidence establishes that the claimant has a personality disorder and
depression; no physical limitation has been documented. (Emphasis added.)

17

We agree with the trial court's determination that these factual determinations
by the Appeals Council were fully supported by substantial evidence. Thus, the
first requirement of Parker is satisfied.

18

Turning, now, to the requirement of Parker that if the Appeals Council rejects
an Administrative Law Judge's credibility finding as to such symptoms as pain
and nervousness, the Council should explain its reason for such rejection. We
discuss this issue because appellant complains that the Appeals Council
improperly handled the issue of Moon's contention that he suffered from pain
and nervousness, both subjective symptoms.

19

In point of fact, the Appeals Council in this case did not reject any credibility

finding by the Administrative Law Judge with respect to Moon's claim that he
was disabled on account of pain. The decision of the ALJ with respect to
Moon's disability was as follows:
20

In 1961 claimant was discharged from the Navy because of an emotional


instability reaction manifested by episodes of tearfulness and despondency
associated with excessive drinking, emotional liability, immaturity, and
difficulties adjusting to even minor stresses. Claimant has been diagnosed at
Veterans' Administration Hospitals as having a severe manic depressive anxiety
disorder. In 1979, claimant experienced a severe inability to function. On June
11, 1979 claimant was examined by Dr. Estes at the Apalachee Community
Mental Health Services in Tallahassee, Florida. The claimant was placed on
Lithium and Valium and received counseling thereafter until September 13,
1979 when his case was closed due to non-compliance with appointments and
recommendations. Claimant's case was re-opened on February 4, 1980 when he
returned to the clinic displaying a severe depressive neurosis. In an August,
1979 report, Dr. Estes states that the claimant's anxiety and neurosis had been
incapacitating and precluded him from continuing his usual occupation as a
mobile home repairman because of an inability to tolerate stress. Dr. Estes
reports that the claimant could not even operate a motor vehicle safely because
of extreme tension. Further, claimant could not interact with customers because
of uncontrollable and explosive anger.

21

Claimant's condition has continued to be disabling. For instance, in an April,


1982 report from the Mental Health Clinic claimant is described as continuing
to be quite depressed. Claimant has difficulty sleeping and only eats
sporadically. Claimant is described as being unable to stay in any one location
for any length of time, having traveled from one facility to another from Florida
to Ohio and to Mississippi seeking treatment. Claimant requires a social support
system in order to sustain him. Essentially, claimant has shown only minimal
ability to function outside of hospitals and counseling situations. Currently,
claimant is reported as showing suicidal ideations and is showing extremely
poor judgment.

22

The record is replete with lengthy Veterans' Administration Hospital records


which also confirm claimant's inability to function in both social and work
environments. Claimant has resided in domiciliaries in Florida, Ohio and
Mississippi.

23

Part of claimant's symptomatology centers around complaints of atypical chest


pain and of generalized arthritic complaints. In May, 1982 claimant was
examined at the expense of the Administration by David E. Kaproth, M.D. Dr.

Kaproth states that claimant is restricted from heavy work because of low back
complaints but that otherwise claimant is not physically disabled. However, the
physician cautioned that the claimant's psychiatric records should be evaluated
with due regard to the claimant's symptomatology complex. In this regard,
MMPI testing as early as October 27, 1976 shows that the claimant has
displayed a markedly elevated hypochondriasis and hysterical scales as well as
elevated neurotic and depressive scales compatible with a functional neurotic
disorder of significant degree.
24

At the hearing, claimant testified that he has made attempts to return to work
unsuccessfully after his alleged onset date, including such attempts in 1979.
Basically, claimant stated that he was not able to handle returning to work when
he attempted employment.

25

The entire medical record in this case establishes that the claimant was
functioning at a barely marginal level until May, 1979. The claimant has a very
low stress tolerance, and even though there are periods of improvement,
claimant repeatedly loses total control, breaks down and becomes unable to
function even in his personal activities. Claimant seeks social service help on a
regular basis and does well only when in a supportive medical and/or
counseling environment. Claimant's desire for disability benefits arises from his
severe psychiatric problems which appear to be quite beyond his control. The
claimant's life in the past few years had demonstrated a substantial inability to
function in social and work environments.

26

After careful consideration of all the evidence of record, I find that with respect
to the claim filed for a period of disability and disability insurance benefits, the
disability earnings requirements are met; that beginning on May 31, 1979, the
claimant was "disabled" as defined in sections 216(i) and 223 of the Security
Act (42 U.S.C. 416(i) and 423) and that the claimant's disability has continued
through the date of this decision.

27

From this decision, it is clear that the ALJ based no part of his determination of
Moon's disability on pain. In fact, he stated that: "Claimant's desire for
disability benefits arises from his severe psychiatric problems which appear to
be quite beyond his control. The claimant's life in the past few years had
demonstrated a substantial inability to function in social and work
environments." It is to be noted also that the reference to pain in the Appeals
Council's finding was only to "the claimant's allegations of pain." It made no
reference to any credibility determination by the ALJ which it was rejecting.

28

We conclude, therefore, that under the standard of Parker, the district court's

28

We conclude, therefore, that under the standard of Parker, the district court's
judgment must be, and is, AFFIRMED.

See Rule 3(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit

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